U.S. Changes Stance in Case On Obscenity

By LINDA GREENHOUSE,

Published: November 11, 1994

WASHINGTON, Nov. 10—
Stung by Congressional criticism of its legal interpretation of a child-pornography law, the Clinton Administration reversed course in a brief filed with the Supreme Court today and disavowed its previous position that the law applied only to depictions of nude children.

The filing of the brief, as well as a statement accompanying it, disclosed an unusual fissure in the top ranks of the Justice Department. The brief was signed by Attorney General Janet Reno and not by Solicitor General Drew S. Days 3d, the Government's top Supreme Court advocate, whose narrower view of the child-pornography law, as expressed in a brief last year, unleashed a storm of criticism on Capitol Hill.

All 100 Senators voted for a resolution last year condemning the brief by Mr. Days, and the crime bill that passed Congress this summer contained a section expressing the sense of the Congress that the brief did not reflect Congressional understanding of the scope of the 1978 law.

In the unusual statement with the brief today, Ms. Reno praised as sound and persuasive the interpretation of the law adopted by the United States Court of Appeals for the Third Circuit, in Philadelphia. The appeals court, affirming for the second time the conviction of a Pennsylvania State University graduate student, Stephen A. Knox, for having ordered three videotapes of scantily clothed young girls, said the law was not limited to nudity.

It was that interpretation that Mr. Days found impermissibly broad in the brief he filed last year. He told the Supreme Court then that both the plain meaning and the legislative history of the law, which makes it a crime to receive or distribute pictures of minors engaged in a "lascivious exhibition of the genitals or pubic area," showed that Congress meant to prohibit only depictions of children who were naked or whose genitals were visible through tight or transparent clothing.

The brief Ms. Reno filed today said that "neither nudity nor discernibility of the genitals through clothing is a required element of the offense." In her statement, the Attorney General said: "I believe that the Government must argue for that legitimate interpretation of the statute, which prohibits the receipt and posession of child pornography to the maximum extent allowed under the Constitution."

She also said, "The Solicitor General and I have discussed this case in light of the evidence and the law, and with great attention to the institutional issues affecting the Department of Justice." She went on: "As I am ultimately responsible for the positions taken by the Untied States, the brief filed today adopts the interpretation made by the Third Circuit, which I believe to be the correct one. For that reason, it bears my signature rather than that of the Solicitor General."

In fact, no lawyer in the Solicitor General's office signed the brief. It is virtually unheard of for the Federal Government to file a Supreme Court brief without the signature of any member of the Solicitor General's office. Attorneys General rarely if ever sign briefs themselves. Mr. Days was traveling today and did not return a telephone call seeking comment.

The brief was greeted with glee by the organizations that had led the opposition to the earlier brief. John D. McMickle, a lawyer for the national Law Center for Children and Families, which led a coalition of groups in filing a brief in the case, said today that the Administration's new position was "the result of one year's worth of concerted effort and the Tuesday elections." He added, "This case is the first indication of how the Justice Department and the Clinton Administration will react in a conservative world."

The brief was filed in response to the Pennsylvania graduate student's second Supreme Court appeal of his conviction, for which he received a five-year sentence. Last year, in response to the Administration's initial brief, the Supreme Court sent the case back to the Third Circuit with instructions to reconsider the conviction in light of the Government's new position. The Third Circuit then rejected the new interpretation and reaffirmed Mr. Knox's conviction.